178 Ind. 208 | Ind. | 1912
Appellee sued appellant on a surety bond executed by it to insure the performance of a contract entered into by one Schott and appellee, whereby Schott agreed to install the Schott Hydro-Vacuum Heating System in the heating plant of appellee, at Frankfort.
The court overruled a demurrer to the complaint, and sustained a demurrer to the second paragraph of appellant’s answer. The issue was formed by the first paragraph of answer, which was a general denial. The cause was tried by a jury, resulting in a verdict of $2,000 for plaintiff. Prom the judgment rendered on this verdict, appellant appeals.
The errors assigned here are the overruling of the demurrer to the complaint, sustaining the demurrer to the second paragraph of answer, overruling appellant’s motion for judgment on the answers of the jury to interrogatories, and overruling the motion for a new trial.
The contract further provided as follows:
“Time of completion: The work herein shall be completed and ready for operation not later than September 1st, 1908, providing the contract is accepted without delay and the contractor is not delayed by causes beyond his reasonable control.”
The following provisions are set forth in the bond sued on:
“1. That said surety shall be notified in writing of any act, omission or default on the part of the said Principal, * * * which may involve a claim or loss for which the said Surety is or may be responsible hereunder, within twenty-four hours after the occurrence of such act, omission or default shall have come to the knowledge of the Owner. * * * gai¿ notification must be given by a. United States post office registered letter, mailed to said Surety at its principal office in Chicago, Illinois. * * # 4. That said owner, the superintendent of the works, must give the said surety five days’ written notice before the last payment under the contract herein referred to, is made the principal, otherwise this obligation shall be void as to any liability of the surety hereunder.”
The complaint, among other things, alleges that Schott entered on the performance of the contract, and endeavored to install the system in connection with plaintiff’s power plant, and erected the same and tried to operate it, bul after its erection and at all times since has wholly failed to operate the system or to make it work. It is alleged further that “plaintiff has made all the payments of money to said Schott as stipulated in said contract.”
A fair construction of the complaint results in the conclusion that it avers that all the payments provided for in the contract were made by appellee, except the last one, which was not due until after the system had been successfully operated, as guaranteed.
It is contended by appellant that the jury’s answers to interrogatories thirteen, fourteen and fifteen established the facts that full and final payment had been made by appellee to Schott before bringing the suit, and that no notice was given to appellant prior to making final payment, and, as proviso four of the bond requires five days ’ notice, the facts above found are in irreconcilable conflict with the verdict.
We think counsel for appellant err in their conclusion. Considering the complaint, which alleges that the system was erected by the contractor, but that it was never made to work, and the above interrogatories and answers thereto, the inference that the last installment—$450—due only
Appellee contends that the requirement in proviso one, of notice 'within twenty-four hours of any act, omission or default on the part of the principal, which may involve a claim, or loss, is unreasonable, and should not be enforced.
"We do not think it necessary to determine that question here. The answer to interrogatory seven discloses the fact that appellee on December 2, 1908, knew of the defective condition of the device, but it does not necessarily follow that this defective condition constituted “any act, omission or default” of the principal, which might involve a claim or loss. The complaint is very long. A copy of the installation contract, filed with the complaint, shows that the device to be installed was a complicated and intricate piece of mechanism, and was designed to perform functions of a delicate and complex nature. It was expressly provided in the contract that the contractor should not be held responsible for delays caused by labor strikes, accidents, delays of carriers, or other causes beyond his control.
Contracts must receive a reasonable interpretation, and this cannot be determined here except by a consideration of all the parts of the contract, including the nature of the mechanism, and the functions it was designed to perform, and the conditions surrounding the installation.
Under the pleadings, evidence might have been given that wholly justified the contractor in the delay in installing the system. Evidence might also have been given showing that when plaintiff discovered the defective condition of the device on December 2, 1908, such defect might have been remedied by some adjustment of the parts, or by removing some part thereof containing a latent defect and supplying its place with a new part free of defects. It might have been shown by the evidence that both the contractor and the appellee in good faith believed that the defective condition of the device could readily be remedied, and that with the consent of appellee the contractor diligently endeavored to remedy the defective condition, but, by reason of labor strikes, accidents, delays of carriers, or “other causes beyond his control”, the contractor was prevented from remedying the defect during the ensuing time up to February 11, 1909, on which day it was discovered for the first time that the defect could not be remedied. In such ease there would have been no “act, omission or default” of the prin
The instructions requested by appellant, and the court’s action with reference thereto, and the instructions given by the court, were brought into the record by a special bill of exceptions. The record discloses the modifications of instructions four and seven, requested by appellant, that were made by the trial court. Without setting them out, it is sufficient to say that appellant was not harmed by the modifications.
Section 700 Burns 1908, §658 R. S. 1881, provides that no judgment shall be reversed by this court where it shall appear that the merits of the cause have been fairly determined by the court below. Here, it affirmatively appears that the modifications of the instructions ■ in controversy could not have been harmful to appellant, and the judgment should not be reversed for such erroneous action of the lower court.
It was not competent to establish the quality or efficiency of the machine in controversy, by proving that of a machine sold to some one else. Acme Cycle Co. v. Clarke (1901), 157 Ind. 271, 280, 61 N. E. 569; McCormick, etc., Mach. Co. v.
Note.—Reported in 97 N. E. 158. See, also, under (1) 31 Cyc. 72; (2) 3 Cyc. 388; (3) 31 Cyc. 79; (4, 6) 38 Cyc. 1927; (7) 38 Cyc. 1818; (8) 38 Cyc. 1617; (9) 38 Cyc. 1722; (10) 17 Cyc. 274; (11) 2 Cyc. 1015; (12) 3 Cyc. 348. As to notice of default of the principal obligor under a contract of guaranty, see 105 Am. St. 516. As to fidelity insurance, see 100 Am. St. 774.